Burtscher v. State

Wisconsin Supreme Court

Burtscher v. State

217 N.W. 326, 194 Wis. 646, 1928 Wisc. LEXIS 34

DecidedJanuary 10, 1928

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This text of 217 N.W. 326 (Burtscher v. State) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Burtscher v. State, 217 N.W. 326, 194 Wis. 646, 1928 Wisc. LEXIS 34 (Wis. 1928).

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Opinion

Vinje, C. J.

Defendant assigned three errors: First, that the findings of the jury were not sustained by the evidence under the law; second, that the court erred in admitting evidence offered by the plaintiff over the objections of the defendant; third, that the sentence is excessive. He relies as to the first assignment of error upon the case of Doscher v. State, 194 Wis. 67, 214 N. W. 359. We think the case [648]*648comes squarely within the rule announced in Ring v. State, 192 Wis. 391, 212 N. W. 662, and not within the Doscher Case. And therefore we hold that the first assignment of error is not well taken.

The daughter testified first that she had never seen her father intoxicated, later that she had seen him intoxicated. It is claimed that this evidence was erroneously received because it is uncontradicted that the jug of moonshine was full when the officers found it and that the drinking she referred to was so remote that it could have no bearing upon the case. We think .that this objection is not well taken because if it was a fact that her father was accustomed to the use of intoxicating liquors that would have some material bearing upon the question of whether he was likely to keep any, although he may not have made use of it for several days previous to the discovery of the jug.

It was entirely within the discretion of the trial judge to fix the penalty for the violation of the statute within its limits. The sentence comes well within the statutory limits and we see no reason why we should disturb it.

By the Court. — Judgment affirmed.

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Vinje, C. J.

Defendant assigned three errors: First, that the findings of the jury were not sustained by the evidence under the law; second, that the court erred in admitting evidence offered by the plaintiff over the objections of the defendant; third, that the sentence is excessive. He relies as to the first assignment of error upon the case of Doscher v. State, 194 Wis. 67, 214 N. W. 359. We think the case [648]*648comes squarely within the rule announced in Ring v. State, 192 Wis. 391, 212 N. W. 662, and not within the Doscher Case. And therefore we hold that the first assignment of error is not well taken.

The daughter testified first that she had never seen her father intoxicated, later that she had seen him intoxicated. It is claimed that this evidence was erroneously received because it is uncontradicted that the jug of moonshine was full when the officers found it and that the drinking she referred to was so remote that it could have no bearing upon the case. We think .that this objection is not well taken because if it was a fact that her father was accustomed to the use of intoxicating liquors that would have some material bearing upon the question of whether he was likely to keep any, although he may not have made use of it for several days previous to the discovery of the jug.

It was entirely within the discretion of the trial judge to fix the penalty for the violation of the statute within its limits. The sentence comes well within the statutory limits and we see no reason why we should disturb it.

By the Court. — Judgment affirmed.

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217 N.W. 326, 194 Wis. 646, 1928 Wisc. LEXIS 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burtscher-v-state-wis-1928.

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